State v. Saltwater ( 2023 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: August 21, 2023
4 No. A-1-CA-40129 and No. A-1-CA-40264
5 (consolidated for purpose of opinion)
6 STATE OF NEW MEXICO,
7 Plaintiff-Appellant,
8 v.
9 RHIANNON SALTWATER a/k/a
10 RHIANNON MARIE SALTWATER,
11 Defendant-Appellee.
12 and
13 STATE OF NEW MEXICO,
14 Plaintiff-Appellant,
15 v.
16 OCTAVIUS ATENE a/k/a
17 OCTAVIUS DAN ATENE,
18 Defendant-Appellee.
1 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
2 Louis E. DePauli, Jr. and R. David Pederson, District Court Judges
3 Raúl Torrez, Attorney General
4 Benjamin L. Lammons, Assistant Attorney General (No. A-1-CA-40129)
5 Santa Fe, NM
6 Meryl Francolini, Assistant Attorney General (No. A-1-CA-40264)
7 Albuquerque, NM
8 for Appellant
9 Bennett J. Baur, Chief Public Defender
10 Melanie C. McNett, Assistant Appellate Defender (No. A-1-CA-40129)
11 Santa Fe, NM
12 Steven J. Forsberg, Assistant Appellate Defender (No. A-1-CA-40264)
13 Albuquerque, NM
14 for Appellees
1 OPINION
2 HENDERSON, Judge.
3 {1} In 2019, the Legislature enacted a new statute that makes it a misdemeanor to
4 drive while intoxicated with a minor in the vehicle, so long as the minor did not
5 suffer great bodily harm or death (DWI with a minor). NMSA 1978, § 66-8-102.5
6 (2019). In the two cases before us,1 we are asked whether the general/specific statute
7 rule requires a prosecutor to charge a defendant for DWI with a minor under Section
8 66-8-102.5 when that statute is violated, instead of child abuse by endangerment,
9 contrary to NMSA 1978, § 30-6-1(D)(1) (2009). The district courts below concluded
10 that it did, and dismissed child abuse by endangerment charges against Rhiannon
11 Saltwater and Octavius Atene (collectively, Defendants), who were driving while
12 intoxicated with minors in their vehicles. The State appeals, arguing that the district
13 courts erred by misapplying the general/specific statute rule and impermissibly
14 restricting prosecutorial charging discretion. We agree. The general/specific statute
15 rule is inapplicable and does not require a prosecutor to charge DWI with a minor
16 instead of child abuse by endangerment when the facts support both charges. The
17 district courts thus improperly limited prosecutorial charging discretion by
1
This opinion consolidates two appeals: Case Nos. A-1-CA-40129 and A-1-
CA-40264. Because these cases each raise the same determinative issue, we
consolidate the cases for decision. See Rule 12-317(B) NMRA.
1 dismissing the child abuse by endangerment charges. We reverse and remand for
2 further proceedings consistent with this opinion.2
3 BACKGROUND
4 {2} Both cases on appeal share similar relevant facts. Saltwater, the first
5 Defendant, was driving a vehicle with her seven-year-old daughter in the backseat.
6 As Saltwater approached an intersection, the traffic light turned red and the truck in
7 front of her stopped; Saltwater did not, and rear-ended the truck. Two officers who
8 were nearby responded to the scene, and one noticed that Saltwater’s daughter was
9 crying. When the officer asked if she was okay, the daughter responded that she was
10 not, so the officer called an ambulance. The daughter was later confirmed to have
11 minor physical injuries as a result of the crash. Saltwater was given field sobriety
12 tests, all of which indicated impairment, and she was arrested. Saltwater provided a
13 breath sample less than an hour later that showed a blood alcohol concentration
14 (BAC) of 0.22.
15 {3} Atene, the second Defendant, was driving a vehicle with his two daughters as
16 passengers. One was five years old, and the other was one-month-old. While
17 traveling on a state highway, Atene crashed into another vehicle. Deputies arrived
2
Because we hold that the general/specific statute rule does not require the
prosecutor to charge DWI with a minor instead of child abuse, we do not reach the
State’s argument in Atene’s case that the child abuse charge was premised on failure
to restrain, not driving while intoxicated.
2
1 on the scene to find a third-party witness attending to Atene’s daughters. The five-
2 year-old had blood running from her nose, a cut and scratches on her face, and blood
3 on her shirt. The one-month-old was “red and crying,” having been found “stuck”
4 under a car seat by the witness. Atene was also injured and transported to a hospital,
5 where he later agreed to have his blood drawn for testing. Atene’s BAC was 0.19
6 after the crash.
7 {4} As relevant here, Defendants were charged by criminal information with child
8 abuse by endangerment. Prior to trial, Defendants moved to dismiss those charges
9 pursuant to State v. Foulenfont, 1995-NMCA-028, ¶ 6, 119 N.M. 788, 895 P.2d
10 1329, arguing that the newly-enacted Section 66-8-102.5 displaced the prosecutors’
11 charging discretion under the general/specific statute rule. See Foulenfont, 1995-
12 NMCA-028, ¶ 6 (permitting dismissal where the facts are undisputed and the case
13 raises a purely legal issue). The district courts agreed with Defendants, dismissed
14 the child abuse by endangerment charges, and amended the criminal information to
15 charge DWI with a minor.3 These appeals followed.
The State raises an argument concerning Saltwater’s right to be free from
3
double jeopardy; however, the district court did not base its ruling on double
jeopardy, and Saltwater concedes “that double jeopardy is not yet at issue for
purposes of this appeal.” Therefore, we do not address this issue further.
3
1 DISCUSSION
2 {5} “The general/specific statute rule is a tool in statutory construction.” State v.
3 Santillanes, 2001-NMSC-018, ¶ 7, 130 N.M. 464, 27 P.3d 456. The general/specific
4 statute rule requires in relevant part that where a statute addresses a subject in general
5 terms and another statute addresses the same subject in a more detailed manner, the
6 latter will control to the extent they conflict. See State v. Cleve, 1999-NMSC-017,
7 ¶ 17, 127 N.M. 240, 980 P.2d 23. “[I]n the particular context of criminal law, the
8 general/specific statute rule assists courts in determining whether the Legislature
9 intended to limit the discretion of the prosecutor in charging under one statute instead
10 of another for the commission of a particular offense.” Santillanes, 2001-NMSC-
11 018, ¶ 10. Because it raises questions of statutory construction, we review
12 application of the general/specific statute rule de novo. See State v. Farish, 2021-
13 NMSC-030, ¶ 11, 499 P.3d 622.
14 {6} Due to its track record of being “frequently difficult for courts to apply,” the
15 general/specific statute rule has been clarified and rephrased a number of times.
16 Cleve, 1999-NMSC-017, ¶ 21; see State v. Guilez, 2000-NMSC-020, ¶ 8, 129 N.M.
17 240, 4 P.3d 1231 (recognizing and naming two “distinct approaches” to the
18 general/specific statute rule, the “quasi-double-jeopardy analysis” and the
19 “preemption analysis”), abrogated by Santillanes, 2001-NMSC-018, ¶ 11 (rejecting
20 the approach in Guilez and stating that those “labels inaccurately suggest that there
4
1 must be two independent analyses undertaken in every case to determine whether
2 the general/specific statute rule applies”). The sum of that progression is a tiered
3 analysis, focused on legislative intent that ultimately determines whether the
4 general/specific statute rule applies. Santillanes, 2001-NMSC-018, ¶¶ 11-17. For
5 criminal statutes, the first question is whether the Legislature intended to create
6 separately punishable offenses between the two relevant crimes, even if the
7 defendant was only charged with or convicted of one of the two crimes at issue.
8 Id. ¶ 13. We begin with this question “because a legislative intent to create multiple
9 punishments necessarily implies that the Legislature also intended to leave intact the
10 prosecutor’s charging discretion.” Id. (internal quotation marks and citation
11 omitted). If the Legislature did not intend to create separately punishable offenses
12 we proceed to the second question, whether the Legislature intended to limit
13 prosecutorial discretion regarding charging decisions to the more specific statute.
14 See id. ¶ 16. Both questions are answered using the same analytical framework. Id.
15 {7} To start, courts must compare the elements of the crimes described in the
16 general and specific statutes. Id. ¶ 23. If the elements are identical, both questions
17 are answered at once: the Legislature did not intend to create separately punishable
18 offenses, and as a corollary intended to limit prosecutorial discretion to the more
19 specific statute, “‘absent a clear expression of legislative intent to the contrary.’” Id.
20 ¶ 16 (quoting Cleve, 1999-NMSC-017, ¶ 26). However, if the elements are different,
5
1 then “there is a presumption that the Legislature intended to create separately
2 punishable offenses and, concomitantly, intended to leave prosecutorial charging
3 discretion intact.” Id. To determine if that presumption stands, “courts should resort
4 to other indicia of legislative intent,” such as “the language, purpose, and histories
5 of the statutes,” and “whether the violation of one statute will normally result in a
6 violation of the other.” Id. (internal quotation marks and citation omitted). In
7 furthering that intent, courts may limit prosecutorial discretion to the specific statute
8 even in the face of differing elements. See id. ¶ 18.
9 {8} The foregoing analysis is qualified by several broad concerns. Our Supreme
10 Court has cautioned against applying the general/specific statute rule in “a rigid,
11 mechanistic fashion.” Id. ¶ 17. The rule “is merely a tool of statutory interpretation
12 and is not an end to itself.” Id. (internal quotation marks and citation omitted).
13 Furthermore, “[i]n the specific context of comparing two criminal statutes, . . . courts
14 should apply the general/specific statute rule guardedly to the extent that it operates
15 to restrict the charging discretion of the prosecutor.” Id. ¶ 21. There must be “clear
16 evidence” that the Legislature intended to limit a prosecutor’s charging discretion.
17 Id. Finally, “[i]n ascertaining legislative intent, courts should balance the rule of
18 lenity, which favors applying the general/specific statute rule in cases of ambiguity,
19 with the judiciary’s longstanding deference to prosecutorial discretion, which favors
6
1 the exercise of caution before applying the general/specific statute rule.” Cleve,
2 1999-NMSC-017, ¶ 26.
3 I. Elements of the Offenses
4 {9} Because of its double jeopardy roots, the general/specific statute rule requires
5 us to compare the elements of two statutes pursuant to Blockburger v. United States,
6 284 U.S. 299, 303-04 (1932). See Santillanes, 2001-NMSC-018, ¶ 16; see also id.7 ¶ 13 (noting the “close relationship between the general/specific statute rule and the
8 principle of double jeopardy”). Under Blockburger, we ask “‘whether each provision
9 requires proof of an additional fact which the other does not.’” Santillanes, 2001-
10 NMSC-018, ¶ 16 (quoting Blockburger, 284 U.S. at 304).
11 {10} The elements plainly differ under a comparison between the two statutes at
12 issue in this case. Child abuse by endangerment “consists of a person knowingly,
13 intentionally or [recklessly],4 and without justifiable cause, causing or permitting a
14 child to be . . . placed in a situation that may endanger the child’s life or health.”
15 Section 30-6-1(D)(1). Our Supreme Court has held, “[T]o find that the accused acted
16 with the requisite mens rea, the jury . . . must find that [the] defendant’s conduct
17 created a substantial and foreseeable risk of harm.” State v. Chavez, 2009-NMSC-
We replace the statute’s reference to negligence with recklessness in line with
4
our Supreme Court’s opinion in State v. Consaul, 2014-NMSC-030, ¶ 37, 332 P.3d
850 (“To avoid the confusion that has plagued this area of the law, we believe that
what has long been called ‘criminally negligent child abuse’ should hereafter be
labeled ‘reckless child abuse’ without any reference to negligence.”).
7
1 035, ¶ 22, 146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation
2 omitted). In contrast, DWI with a minor consists of a violation of the general DWI
3 statute, NMSA 1978, § 66-8-102 (2016), “when a minor is in the vehicle and when
4 the minor does not suffer great bodily harm or death.” Section 66-8-102.5(A). Unlike
5 child abuse by endangerment, DWI with a minor requires proof that the defendant
6 was driving while under the influence of drugs or alcohol. See § 66-8-102. And
7 unlike DWI with a minor, child abuse by endangerment requires proof of a culpable
8 mental state and sufficient risk of harm to the child. Additionally, although both
9 crimes require proof of a specific age, DWI with a minor only applies to children
10 under thirteen while child abuse covers any child under eighteen. Compare § 66-8-
11 102.5(C), with § 30-6-1(A)(1). Thus, strictly speaking, the elements of the two
12 statutes differ, creating a presumption that the Legislature did not intend to limit
13 charging discretion to DWI with a minor. See Santillanes, 2001-NMSC-018, ¶ 16;
14 see also State v. Ibn Omar-Muhammad, 1985-NMSC-006, ¶ 22, 102 N.M. 274, 694
15 P.2d 922 (concluding that the Legislature intended to leave prosecutorial discretion
16 intact when the vehicular homicide statute contained no requirement that the
17 defendant “know of any risk involved in [their] actions,” in contrast to depraved
18 mind murder).
19 {11} Recognizing the side-by-side differences between the statutes, Saltwater urges
20 us to apply the Blockburger test as modified by our Supreme Court in State v.
8
1 Gutierrez, 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258 P.3d 1024. When the modified
2 Blockburger test applies, we compare the elements of the two statutes based on “the
3 state’s legal theory of the particular case as to how the statutes were violated.” State
4 v. Begaye, ___-NMSC-___, ¶ 17, ___ P.3d ___ (S-1-SC-38797, Jan. 12, 2023). The
5 test applies to cases in which a defendant is convicted for one act under different
6 criminal statutes and “where the statutes at issue are vague and unspecific or are
7 written in the alternative.” Id. ¶¶ 12, 17. Saltwater argues that we should also use the
8 modified Blockburger test in our general/specific statute rule analysis because the
9 rule “should be applied in a flexible manner,” see Santillanes, 2001-NMSC-018,
10 ¶ 21, and the child abuse statute, if taken literally, “could be read broadly to permit
11 prosecution for any conduct.” See Chavez, 2009-NMSC-035, ¶ 16. Under a modified
12 Blockburger approach, Saltwater asserts that the elements of child abuse by
13 endangerment are subsumed into DWI with a minor, because driving while
14 intoxicated is reckless behavior that creates a substantial and foreseeable risk of
15 harm to a minor passenger. See State v. Orquiz, 2012-NMCA-080, ¶ 15, 284 P.3d
16 418 (“[J]ust as the driver’s actions strictly constitute DWI, even absent any
17 additional ‘plus factor,’ so do the driver’s actions constitute child abuse by
18 endangerment.”).
19 {12} Saltwater misunderstands how the State’s charging theory impacts our
20 analysis. New Mexico case law has perhaps been less than clear about what role the
9
1 state’s charging theory has in determining if the general/specific statute rule applies.
2 Often, it appears that appellate courts engage only in a strict elements comparison.
3 For example, in Ibn Omar-Muhammad, the defendant was convicted of first-degree
4 depraved mind murder after killing the victim with their car while fleeing from
5 police. 1985-NMSC-006, ¶¶ 1, 10. The defendant appealed, arguing that they should
6 have been charged with vehicular homicide under the general/specific statute rule.
7 Id. ¶ 16. Our Supreme Court rejected the argument based on differences between the
8 mental states required to convict for depraved mind murder and vehicular homicide:
9 [T]he mental state required for vehicular homicide (conscious
10 wrongdoing) requires only that a defendant purposefully engage in an
11 unlawful act. This concept does not require that a defendant know of
12 any risk involved in [their] actions. However, for a defendant to be
13 convicted of depraved mind murder in the first degree, it must be
14 proven that [they have] a subjective knowledge of the risk involved in
15 [their] action. This element of subjective knowledge under depraved
16 mind murder requires proof of an additional fact which is not required
17 under the vehicular homicide statute.
18 Id. ¶ 22. In so concluding, the Court did not focus on the specific conduct alleged to
19 have amounted to depraved mind murder and whether the Legislature intended to
20 punish that conduct under the vehicular homicide statute. See id.
21 {13} However, in Cleve, our Supreme Court expressly relied on the state’s charging
22 theory when comparing elements of unlawful hunting and cruelty to animals. 1999-
23 NMSC-017, ¶ 30. Unlike the cases at hand, the defendant had been convicted under
24 both statutes at issue. See id. ¶¶ 4-5. Both the unlawful hunting and cruelty to animals
10
1 statutes in force at the time provided numerous alternative bases for violations. See
2 NMSA 1978, § 30-18-1 (1999, amended 2007); NMSA 1978, § 17-2-7 (1979). In
3 its analysis, the Court noted that the state sought a conviction for unlawful hunting
4 and cruelty to animals based on the defendant snaring and killing two deer in
5 violation of state regulations. Cleve, 1999-NMSC-017, ¶ 30. The Court accordingly
6 limited its analysis by comparing only the applicable statutory elements, namely
7 taking a game animal in a manner not permitted by regulations and torturing or
8 cruelly killing an animal. See id. (noting that when “offenses are defined by statutes
9 providing several alternatives,” courts “focus on the legal theory of the case and
10 disregard any inapplicable statutory elements” (internal quotation marks and citation
11 omitted)). In the end, “the unique elements of torture or cruelty” and a violation of
12 state regulation presented a difference in the two statutes creating a presumption that
13 the Legislature intended separately punishable offenses. Id.14 {14} This Court took the same approach in State v. Santillanes regarding child
15 abuse and vehicular homicide. 2000-NMCA-017, ¶ 7, 128 N.M. 752, 998 P.2d 1203,
16 rev’d on other grounds, 2001-NMSC-018, ¶¶ 1, 24-26. As it does now, the child
17 abuse statute applicable at the time defined the crime in the alternative. See NMSA
18 1978, 30-6-1(C) (1989, amended 2009). The defendant had been charged, and
19 convicted, of vehicular homicide and child abuse by endangerment resulting in
20 death. Santillanes, 2000-NMCA-017, ¶ 3. The defendant had been drinking while
11
1 driving with their three children, girlfriend, and her niece in the vehicle when they
2 crashed into an oncoming truck, killing everyone but the defendant. Id. ¶ 2. Like our
3 Supreme Court in Cleve, this Court narrowed the elements of child abuse to those
4 relevant to the case. See id. ¶ 7. In so doing, we concluded that “the statutes stand
5 independently of one another, and neither subsumes the other because the charge of
6 child abuse resulting in death requires only the death of a child and vehicular
7 homicide requires that the death occur as a result of a defendant driving a vehicle
8 while intoxicated.” Id. Even though it reversed on other grounds, our Supreme Court
9 “agree[d] with [this Court] that under the Blockburger test the elements of the crimes
10 differ[ed],” and proceeded to apply the factors outlined in Cleve to determine that
11 the Legislature did not intend to limit the discretion of the prosecutor in charging an
12 individual who caused the death of a child in a manner that otherwise meets the
13 elements of both crimes, when the crime occurred during the operation of a vehicle.
14 Santillanes, 2001-NMSC-018, ¶ 24.
15 {15} In examining the elements of the child abuse by endangerment and DWI with
16 a minor in this case, we have done no more than is required by Santillanes and Cleve.
17 Neither of those cases, in narrowing the statutes at issue to their relevant elements,
18 went as far as Saltwater suggests we do now. Nor do we think it necessary or
19 appropriate to do so. First, Saltwater’s approach, which asks us to consider the
20 State’s proof under both statutes rather than whether both statutes require proof that
12
1 the other does not, would turn our elements comparison into one focusing on whether
2 the conduct was unitary. “However, for purposes of the general/specific statute rule,
3 we do not ask whether the conduct used to convict a defendant of two crimes is
4 unitary.” Santillanes, 2001-NMSC-018, ¶ 14. Second, unlike the defendants in
5 Santillanes and Cleve, Defendants have neither been convicted nor charged with
6 both statutes at issue. Our analysis is necessarily “somewhat hypothetical” as a
7 result—we cannot compare the state’s charging theory between two statutes. See
8 Santillanes, 2001-NMSC-028, ¶ 14. It is difficult, then, to accept the level of
9 granularity Saltwater suggests is appropriate, because we simply do not know how
10 the State would charge Defendants if it charged them with both DWI with a minor
11 and child abuse by endangerment. Attempting to do so would also unduly restrict
12 our ultimate goal, which is determining whether the Legislature intended to limit
13 charging discretion to a specific statute in all cases where the elements of the specific
14 statute are met.
15 {16} In rejecting Saltwater’s argument, we caution against relying on this
16 conclusion in the event a defendant is convicted of both child abuse by endangerment
17 and DWI with a minor. “[W]hile the double jeopardy inquiry focuses on whether the
18 Legislature intended to limit a court’s discretion in imposing multiple punishments,
19 the general/specific statute rule determines whether the Legislature intended to limit
20 the discretion of the prosecutor in its selection of charges.” Cleve, 1999-NMSC-017,
13
1 ¶ 25. With that focus in mind, we acknowledge that Saltwater’s suggested approach
2 may be better applicable to a circumstance that entails two convictions after the
3 State’s theory has been elaborated on in more detail. Cf. Santillanes, 2001-NMSC-
4 018, ¶ 14 (“[I]f a defendant is convicted of two crimes and raises claims of both
5 double jeopardy and the general/specific statute rule, it is important to analyze each
6 claim independently.”). However, for purposes of our general/specific statute rule
7 analysis, based on our comparison above, the elements of child abuse by
8 endangerment and DWI with a minor are different. Like the statutes in Ibn Omar-
9 Muhamad, child abuse by endangerment requires a particular mental state that is
10 absent from the DWI with a minor statute. 1985-NMSC-006, ¶ 22. And like this
11 Court acknowledged in Santillanes, child abuse by endangerment does not require
12 proof that the defendant was driving while intoxicated. See 2000-NMCA-017, ¶ 7.
13 Those differences give rise to a presumption that the Legislature intended to leave
14 prosecutorial discretion to choose either charge intact. See Santillanes, 2001-NMSC-
15 018, ¶ 16.
16 II. Other Indicia of Legislative Intent
17 {17} We move on now to determine if the presumption in favor of prosecutorial
18 discretion stands in the face of other indicators of legislative intent. We first look to
19 the language, histories, and purpose of the child abuse and DWI with a minor
20 statutes. See id. Section 66-8-102.5 contains no language expressly limiting use of
14
1 the child abuse statute when a person drives while intoxicated with a minor in the
2 vehicle, despite three appellate decisions declining to require prosecution under
3 statutes addressing intoxicated drivers. See Santillanes, 2001-NMSC-018, ¶ 27;
4 Guilez, 2000-NMSC-020, ¶ 24; State v. Castañeda, 2001-NMCA-052, ¶ 9, 130
5 N.M. 679, 30 P.3d 368. We “presume[] that the Legislature is aware of existing case
6 law and acts with knowledge of it.” State v. Chavez, 2008-NMSC-001, ¶ 21, 143
7 N.M. 205, 174 P.3d 988. Indeed, the Legislature was mindful of Section 66-8-
8 102.5’s interaction with other statutes, specifically permitting punishment in
9 addition to that under the general DWI statute, Section 66-8-102. See § 66-8-
10 102.5(B). If the Legislature intended Section 66-8-102.5 to be the specific statute
11 charged in every instance of DWI with a minor, it could have stated so explicitly.
12 We disagree with Saltwater’s argument that the plain language of Section 66-8-102.5
13 supports an inference that the Legislature intended to restrict charging discretion
14 simply because the facts of this case “fit” what is being described in the statute. The
15 notion that a defendant’s conduct fits within one statute more specifically than
16 another is embodied in every argument under the general/specific statute rule, but
17 that fact is insufficient on its own to demonstrate legislative intent to restrict
18 charging discretion—that is why we engage in the multistep analysis from
19 Santillanes. 2001-NMSC-018, ¶¶ 11-17.
15
1 {18} However, we do agree with Defendants that the child abuse statute and
2 Section 66-8-102.5 share a similar purpose and histories. The child abuse statute “is
3 designed to give greater protection to children than adults because children are more
4 vulnerable than adults and are under the care and responsibility of adults.”
5 Santillanes, 2001-NMSC-018, ¶ 24 (internal quotation marks and citation omitted).
6 In Castañeda, this Court contrasted that purpose with the general DWI statute, and
7 concluded that “the DWI statute protects the general public (including children)
8 from intoxicated drivers.” 2001-NMCA-052, ¶ 10. Although the State suggests that
9 Castañeda should still control, we are not addressing the statute we addressed in
10 Castañeda, but instead a statute that focuses on a smaller class of individuals. In
11 addition to a violation of the general DWI statute, Section 66-8-102.5 requires that
12 there be a minor under thirteen years old in the vehicle. This element narrows the
13 general DWI statute to protect specifically younger minors, rather than adults,
14 similar to the child abuse statute. See Santillanes, 2001-NMSC-018, ¶ 24. In so
15 doing, the Legislature continued the spirit of the child abuse statute through to
16 Section 66-8-102.5. “[T]he history of the child abuse statute clearly shows the
17 Legislature’s intent to protect children from abuse and compels the conclusion that
18 the Legislature has expanded protection for children.” Santillanes, 2001-NMSC-
19 018, ¶ 24 (alterations, internal quotation marks, and citation omitted). Despite
20 having no statutory history of its own—the statute has yet to be amended since its
16
1 passing—Section 66-8-102.5 similarly represents an expansion of protection for
2 children against abuse at the hands of adults.
3 {19} We next consider “whether the violation of one statute will normally result in
4 a violation of the other.” Santillanes, 2001-NMSC-028, ¶ 16 (internal quotation
5 marks and citation omitted). Regarding the child abuse statute and general DWI
6 statute, we have previously held that they “criminalize some of the same conduct.”
7 Castañeda, 2001-NMCA-052, ¶ 8. So is the case with the child abuse statute and
8 Section 66-8-102.5. Indeed, this Court has held that driving while intoxicated with
9 a minor may result in a conviction for child abuse “even absent any additional ‘plus
10 factor.’” Orquiz, 2012-NMCA-080, ¶ 15. But that holding does not dictate the result
11 here, because despite the similarities, there are important differences in the conduct
12 targeted by the statutes generally. It is beyond dispute that the child abuse statute
13 criminalizes significantly more conduct than driving while intoxicated with a minor.
14 There are also instances where Section 66-8-102.5 will be violated when the child
15 abuse statute is not. For example, the holding in Orquiz was limited to cases of
16 “actual driving.” 2012-NMCA-080, ¶¶ 4, 10. “[O]ur case law holds that a conviction
17 for child abuse by endangerment cannot be sustained when premised upon a DWI
18 conviction that is based on the driver being in actual physical control of a non-
19 moving vehicle with a child occupant.” Id. ¶ 10; see, e.g., State v. Etsitty, 2012-
20 NMCA-012, ¶¶ 2, 13, 270 P.3d 1277 (reversing a conviction for child abuse based
17
1 on the defendant being intoxicated while in the driver’s seat of a parked truck with
2 his child present). However, a DWI based on actual physical control with a child
3 occupant will result in a violation of DWI with a minor, because it incorporates the
4 general DWI statue, not simply instances of actual driving. See § 66-8-102.5
5 (requiring “a violation of Section 66-8-102 . . . when a minor is in the vehicle and
6 when the minor does not suffer great bodily harm or death”). Despite the fact that
7 the child abuse statute and Section 66-8-102.5 criminalize some of the same conduct,
8 there are important instances where they do not, indicating that the Legislature
9 intended the prosecutor be able to choose which to charge depending on the
10 circumstances.
11 {20} We recognize both the State and Defendants suggest for our consideration
12 what they consider to be other indicators of legislative intent. The State posits that
13 we can glean the Legislature’s intent from statements made by Section 66-8-102.5’s
14 sponsor to the local news and in a hearing while the statute was being voted on.
15 Defendants reject this approach and turn our attention to video recordings of
16 hearings on Section 66-8-102.5 during the legislative session and drafts of the
17 statute. We understand these efforts, given the increased accessibility of individual
18 legislators’ prior statements in a state that still has “‘no state-sponsored system of
19 recording the legislative history of particular enactments.’” State v. Vest, 2021-
20 NMSC-020, ¶ 33, 488 P.3d 626 (quoting Regents of Univ. of N.M. v. N.M. Fed’n of
18
1 Tchrs., 1998-NMSC-020, ¶ 30, 125 N.M. 401, 962 P.2d 1236). However, New
2 Mexico case law is firm in rejecting attempts to consider materials like the parties
3 put forward to determine legislative intent. See id. ¶ 33 (“There are countless reasons
4 why language may be added or deleted during the legislative drafting process and,
5 unlike the United States Congress, our Legislature does not keep a record of floor
6 debates or committee hearings.”); Regents of Univ. of N.M., 1998-NMSC-020, ¶ 32
7 (“The statements of legislators, especially after the passage of legislation, cannot be
8 considered competent evidence in establishing what the Legislature intended in
9 enacting a measure.”); Whitely v. N.M. State Pers. Bd., 1993-NMSC-019, ¶ 16, 115
10 N.M. 308, 850 P.2d 1011 (“The views of individual legislators are not controlling in
11 judicial interpretation of statutes under the circumstances present here because the
12 sovereign authority of the [L]egislature is instilled in the representative body, not its
13 individual members.”); Baker v. Hedstrom, 2012-NMCA-073, ¶ 28, 284 P.3d 40014 (“[G]enerally, not even statements of legislators are considered competent evidence
15 in determining legislative intent.”). Given our case law, we will not consider the
16 legislative history the parties ask us to, and instead rely on our analysis of Section
17 66-8-102.5 as finally passed.
18 {21} While the child abuse statute and DWI with a minor statute share similar
19 purposes and histories, there are differences in the conduct each criminalizes, and
20 the plain language of Section 66-8-102.5 provides no indication that the Legislature
19
1 intended it to always be charged by a prosecutor instead of child abuse by
2 endangerment. “[I]n applying the general/specific statute rule, courts must be wary
3 not to infringe unnecessarily on the broad charging authority of district attorneys,”
4 and for that reason our Supreme Court requires “clear evidence of an intent by the
5 Legislature to limit prosecutorial discretion.” Santillanes, 2001-NMSC-018, ¶ 21.
6 The elements of child abuse by endangerment and DWI with a minor differ, and
7 other indicia of legislative intent fall short of the clear evidence required by
8 Santillanes to require a prosecutor to charge the latter. Accordingly, we hold that the
9 general/specific statute rule does not apply in the cases before us, and the prosecutors
10 retained the discretion to charge Defendants with child abuse by endangerment.
11 CONCLUSION
12 {22} For the foregoing reasons, we reverse and remand to the district court for
13 further proceedings consistent with this opinion.
14 {23} IT IS SO ORDERED.
15 __________________________________
16 SHAMMARA H. HENDERSON, Judge
17 WE CONCUR:
18 ________________________________
19 J. MILES HANISEE, Judge
20 ________________________________
21 JACQUELINE R. MEDINA, Judge
20